What is a Will?
A Will is a legal document that sets out your wishes as to how your estate is to be distributed once you have passed away.
Who needs a Will?
Everyone over 18 who has capacity to make a Will, should make one. It does not matter how large or small your Estate may be or how old you are, it’s important to have a valid Will. A court can approve a Will being made for someone who cannot legally make a Will themselves, for example, for a wealthy child.
To be valid, a Will must be in writing, dated, signed by the person making the Will (the testator) in front of 2 witnesses.
Witnesses must be over 18, cannot be visually impaired and should not be beneficiaries of the will. They need not be qualified (ie a solicitor, Justice of the Peace or ComDec).
When you die without a Will, you are said to have died “intestate”. The Succession Act (Qld) sets out the rules (“intestacy laws”) as to how the estate of someone who has died intestate is to be distributed. These intestacy rules include, but are not limited to:
• If you have a spouse (including de facto) and no children, your spouse gets the whole of the estate; or
• If you have a spouse and a child, your spouse receives $150,000 plus household chattels plus ½ of the balance (or 1/3 if more than one child).
Dying intestate may have unwanted consequences such as:
• Having to sell the family home in order to distribute your estate;
• You can not provide for your pets or appoint a carer for them;
• An estranged family member benefiting from your estate when you do not want them to;
• Your Estate may not be distributed to your beneficiaries in the proportions that you may have wanted;
• You may be placing an extra burden on family members during a time of stress, grief and loss;
• Potential for conflict between the beneficiaries of your Estate, particularly amongst members of a blended family;
• It may be more costly and take longer to administer your estate.
Why get a solicitor to draw up your Will?
A Will is a legal document, and as such, if the Will is unclear, improperly worded or incorrectly signed or witnessed, then it may be invalid and your wishes completely disregarded.
A properly drafted and executed Will gives you a number of options in how your estate is administered and distributed, for example, you can:
• choose your own executor/s (that is, the people who will administer your estate once you’ve passed away);
• give gifts to specific people or to a charity. These gifts include small items such as photos and large items. As long as you own something, you may gift it in your Will);
• appoint guardians for your children and also leave funds for the guardians to use for your children’s expenses, such as health, medical or education expenses, as well as everyday living expenses;
• set up a trust to ensure that your assets are used or invested for the best interests of the beneficiaries;
• make provisions and care arrangements for your beloved pets;
• express specific wishes in relation to burial, cremation or organ donation arrangements
• make arrangements for the succession and continuation of your business, or sale of the business.
When should you update your Will?
You should change your Will if: you get married, divorced or separate from your partner, enter into a defacto relationship, you have children or grandchildren, your executor or beneficiary dies, there is a change in your financial circumstances or your wishes change, retirement, a natural disaster
Lockett McCullough Lawyers has extensive experience in drafting Wills that clearly set out your wishes and give you peace of mind. We will offer you advice and experience in drafting your Will and also assist your Executors once you have passed away. We also offer a Safe Custody service to our clients where we will hold your Will and/or Enduring Power of Attorney securely. This avoids any uncertainty over the location and content of your Will.
For more information about our Wills and Estates services or to arrange an appointment to discuss your Will, please contact us.